Rathbun v. Propser

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 8, 2010

STEVEN EDWARD RATHBUN, PETITIONER,v.K. PROPSER, WARDEN, RESPONDENT.

The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

[Motion filed on October 9, 2007]

ORDER (1) GRANTING 25-DAY EXTENSION OF TIME TO FILE TRAVERSE and (2) DENYING/ MOTION FOR APPOINTMENT OF COUNSEL

Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28 U.S.C. § 2254. The Petition was filed on June 29, 2006. Respondent filed an Answer on October 11, 2006. On October 9, 2007, Petitioner filed a motion seeking leave to file an untimely traverse. On January 5, 2009, the action was transferred to this Court pursuant to an Order of Designation of Judge to Serve in Another District Within the Ninth Circuit. The Court discovered that Petitioner's motion to file an untimely traverse had never been ruled upon, and granted the motion on December 1, 2009, allowing Petitioner to file a traverse within 30 days of that Order. (Dkt. No. 24.)

On December 14, 2009, Petitioner filed a Motion to Appoint Counsel, in which he argued he was never properly served with a copy of Respondent's answer to his petition. The Court denied the motion on December 18, 2009, but ordered Respondent to serve Petitioner with a copy of its answer within 7 days, and allowed Petitioner an additional 30 days from the date of service to file his traverse. (Dkt. No. 26.)

On December 23, 2009, Petitioner filed a Motion for Extension of Time to File Traverse to Respondent's Answer and to Compel the Appointment of Counsel. (Dkt. No. 28.) He then filed a second motion seeking a 60-day extension of time to file his traverse on January 6, 2010. (Dkt. No. 29.) Petitioner contends that his limited access to the prison law library makes it difficult to for him to respond to the Answer by January 27, 2010.

Petitioner's traverse in this matter was initially due on November 20, 2006, over three years ago. (Dkt. No. 8.) The Court has already granted several requests to extend the time allowed, and ensure Petitioner has the appropriate filings necessary to complete his traverse. The Court will grant one final twenty-five (25) day extension. No further requests for an extension of time to file the untimely traverse will be entertained. Petitioner may file a traverse no later than February 21, 2010.

On that date, the Petition will stand fully briefed and be taken under submission. As stated in this Court's prior rulings, the Court does not find that the interests of justice would be served by the appointment of counsel. See 18 U.S.C. § 3006A. Therefore, Petitioner's motion for the appointment of counsel is DENIED.

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